Allianz Australia Insurance Limited v Shuk

Supreme Court of NSW|2023-07-06|Before: Basten AJ

Solicitors: Moray & Agnew Lawyers (Plaintiff) CMC Lawyers (First Defendant) File Number(s): 2023/00043710 Decision under appeal Court or tribunal: Personal Injury Commission Jurisdiction: Motor Accidents Division Date of Decision: 21 December 2022 Before: Member B Nolan File Number(s): M10472665/21

Procedural matters

Four procedural matters should be noted. First, the claimant filed a submitting appearance in this Court, as, appropriately, did the President of the Commission. As a result, the Court was not assisted by submissions on her behalf. Despite the absence of opposition, the Court should not set the decision aside unless satisfied that a relevant error has been made.
Secondly, although the Summons incorrectly identified the second defendant as "Personal Injury Commission trading as The President of the Personal Injury Commission of New South Wales", the party was correctly identified in the submitting appearance as The President of the Personal Injury Commission of New South Wales. He will be so identified in the published judgment.
Thirdly, reference should be made to the evidence before the Court. An affidavit of the insurer's solicitor was read, annexed to which were copies of all the documents before the member, together with the member's certificate and statement of reasons.
There was an inherent inconsistency between the summons (alleging only errors of law on the face of the record) and the inclusion in the evidence of all the material relied on by the decision-maker. That material does not constitute "the record" in any conventional sense. It was necessary, however, in order for the insurer to rely upon a no-evidence ground and a ground of manifest unreasonableness. The material was admitted on the basis that those grounds constituted elements of the insurer's case.
Fourthly, it is necessary to note that there were 300 pages of cases (with single-sided copying) included in the white court book. All the cases involved appellate review of motor accident damages claims. Very little of the material was concerned with relevant legal principles. Further, to the extent that the cases demonstrated appellate interference with decisions by trial courts, or criticism of appellate interference, each was dealing with an appeal by way of rehearing under s 75A of the Supreme Court Act. Their reasoning was not limited to, and did not seek to address, possible errors of law on the face of the record of the trial court. It is necessary for this Court, exercising its judicial review function, to be wary of reliance sought to be placed on such cases.
With these premonitory observations in mind, it is necessary to identify the factual circumstances of the accident as revealed in the material before the member.

Factual material

The accident occurred at around 2.45pm on 5 March 2021. The setting was a bus stand on Smith Street, Parramatta. The claimant walked to the rear of the bus from which she had alighted, turned left at the rear of the bus thus stepping off the kerb onto the roadway and onto what appears to have been a bus parking lane only. The road in front of her which she intended to cross had two-way traffic. Until she reached and traversed the rear of the bus from which she had alighted, she would not have been able to see traffic coming on the other side of the road from her left. However, the near side lane into which she then moved involved traffic coming from her right, travelling in the same direction as the bus from which she had alighted. There is no doubt that she did not look to the right as she stepped out into the near side lane.
The security camera footage which was part of the material before the trial judge shows the claimant walking behind the bus and stepping out onto the lane. At that point, the claimant is looking left and not right. She clearly walks into the path of the oncoming car on her right. The CCTV footage shows the car braking vigorously and stopping on her foot. She suffered a significant injury to her foot and ankle.
The evidence available to the member, other than the CCTV footage, included written statements of the insured driver and two independent witnesses as well as an oral statement from the bus-driver. Two points may be made in relation to this evidence. First, the account of the claimant is only available to this Court in the form of brief references in the member's reasons. Her evidence was taken at an oral hearing and, if recorded, the recording is not available to the Court.
Secondly, there were conflicts in the evidence which the member neither noted nor resolved. Both independent witnesses recounted that there were two buses in the inside lane, one about three metres behind the claimant's bus, and that the claimant walked between them. The CCTV footage suggested otherwise. The picture recorded on the film is clearly foreshortened in the direction of the camera; however, it is not clear whether distances laterally are affected. (There also appears to be some temporal speeding up.) However, as the claimant walked out onto the roadway behind her bus, there is a space of some five or six metres on her right where there is no bus. Almost immediately after the accident, a bus drives into that space. Whether the second bus arrived from somewhere else or moved forward a few metres is not known. However, if the witnesses' accounts were correct, it would have been almost impossible for the insured driver to see the claimant step off the kerb and pass between the buses. On the other hand, if there were in fact no second bus on the claimant's right, the insured driver coming from the claimant's right would have had a better opportunity of seeing her before the collision.
Thirdly, the member stated that the claimant gave evidence at the oral hearing that as she walked towards the rear of her bus, "she was looking in the direction from which the insured vehicle was travelling. … She said that she perceived that she had sufficient distance to be able to cross the road and walked behind the bus". [1] Assuming that the member accepted that evidence, which she described as "consistent with" the CCTV footage, there was no express finding as to whether or not she saw the vehicle which hit her at any point, nor whether she could have seen it. If she could have seen the vehicle, it might be inferred that the driver of the vehicle could have seen her, which would have been significant.
The insured driver's statement in relation to the accident was, relevantly, as follows: "37 I was looking directly ahead and focusing on the road. Next thing when I was about halfway along the length of the rear bus when I first saw the pedestrian pop out between the two buses that were only a metre or two apart. She appeared to be looking directly across the road and not in my direction. 38 She then did not stop at all and stepped out into the line of traffic in front of me. I only had a split second to react and I applied the brakes hard. I was to stop just as she reached the front passenger side of my car but the front tyre stopped right on her right foot."
The only reference to the insured driver's evidence in the reasons was in a summary of the insurer's submissions. No finding was made as to whether the member accepted or rejected her evidence.
The reasons also noted the claimant's submission that "the insured driver had ample vision to see her presence in the middle of the roadway". [2] The submission then stated that the driver ought to have been "alert to the possibility that there may be pedestrian traffic wanting to cross the road". The member made two findings in the course of her reasons to the following effect: "31 Having viewed the CCTV footage on the countless occasions, I am satisfied that the claimant was visible to the insured driver upon stepping off the kerb, entering the roadway … … 33 … I am also satisfied that the claimant did check for oncoming traffic before she cross the road. At the oral hearing before me, the claimant gave evidence that she had looked down Smith Street, for oncoming traffic and noted that the insured vehicle was sufficiently distant for her to be able to cross the single lane of traffic."
In my view, although the finding contradicted the evidence of the independent witnesses and of the driver, it was a finding which was open to the member based on the CCTV footage. Nevertheless, if the claimant saw the insured driver's car approaching and stepped into its path without a second glance to her right, such conduct might have formed the basis for a finding of a high level of contributory negligence, unless the approaching vehicle had accelerated unexpectedly. It will be necessary to return to that point shortly.

Legal framework of decision

The Motor Accident Injuries Act provides for payment of statutory benefits for loss of earnings and medical expenses for persons injured in motor vehicle accidents for a period of 26 weeks after the accident without a requirement that the claimant prove fault. There was no dispute that the claimant was entitled to such payments, which were made by the third-party insurer, Allianz, in accordance with the scheme in Pt 3 of the Act. The dispute arose as to whether the claimant was entitled to continuing payments after 26 weeks. That turned upon the application of s 3.11, which, at the relevant time, read as follows: 3.11 Cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks (1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if - (a) the motor accident was caused wholly or mostly by the fault of the person, or (b) the person's only injuries resulting from the motor accident were minor injuries. (2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
It was accepted that par (b) was satisfied: the claimant's injuries were not limited to "minor injuries". The dispute was as to whether the claimant's contributory negligence was greater than 61%. The member concluded that there was contributory negligence, but assessed it at 25%.
The assessment of contributory negligence is undertaken in accordance with the requirements of s 3.38 of the Act, which relevantly provides: 3.38 Reduction of weekly statutory benefits after 6 months for contributory negligence (1) The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 52 weeks after the time of the motor accident. … (3) The weekly payments of statutory benefits payable in respect of a motor accident are to be reduced on account of contributory negligence - … (b) by such percentage as the parties agree, or (c) in any other case - by such percentage as the Commission determines (for the reasons stated) is just and equitable in the circumstances of the case. If there is a dispute about the percentage of the reduction on account of contributory negligence, the insurer is required to make the weekly payments with the reduction the insurer considers appropriate pending the determination of the dispute by the Commission.
Reference to the "common law" may be disregarded for present purposes. "Fault" is defined in s 1.4 to mean "negligence or any other tort". The member accepted that the assessment as to the "fault" of the claimant was to be made by reference to contributory negligence, in accordance with relevant provisions of the Civil Liability Act 2002 (NSW). [3]

Errors of law on face of record

For present purposes, the insurer accepted that any relevant error of law must be identified by reference to the reasons given by the member. The apportionment of culpability required under s 3.11 required an assessment of the fault of both the driver and the claimant. The insurer asserted that the member's reasons revealed legal error in the approach adopted in each aspect of the assessment and in the comparison.

Fault of driver

The member's reasoning commenced with two propositions which are not under challenge. First, she noted that "driving requires reasonable attention to all that is happening on or near the roadway that may present a source of danger", referring to the decision of the High Court in Manley v Alexander. [4] She then stated that the duty was "amplified" where a vehicle "is entering a high pedestrian traffic area, where it is reasonably expected that passengers will be alighting from buses and attempting to cross the road with a view to catch[ing] connecting buses". [5]
So much was accepted: however, the insurer took issue with the following passage: "30 It is not necessarily proof of adherence to the requisite standard of care that the insured vehicle was travelling on or under the speed limit. As the CCTV footage supports, the speed at which the insured driver was travelling was inappropriate to constitute the necessary precaution to avoid the foreseeable loss of pedestrians [sic] conducting themselves in the matter to which I have referred above."
That language was repeated: "32 Indeed, she was able to stop it becoming apparent that the claimant was entering lane 2. Had the insured driver been driving at the speed at which I consider she ought to have been, consistent with the prevailing conditions I have described, she would have, in applying the brakes as she did, ultimately been able to stop in sufficient time to avoid running over the claimant's foot."
That language was repeated again in the final dispositive passage which should be set out in full: "34 When considering the respective culpability of the parties, I am satisfied that the responsibility for the motor accident strongly attaches to the insured driver. Likewise, on the score of causative contribution for the accident, the insured driver had the far superior means of avoiding the damage to the claimant by reducing her speed in what was an obviously built-up high pedestrian traffic area. It was the driver's conduct, in failing to drive to the prevailing conditions, that overwhelmingly contributed to the motor accident. Had the injured driver been driving [at] an appropriate speed she would have been able to brake sufficiently so as not to collide with the claimant's foot. As the CCTV footage shows, the insured driver was able to brake, just not quickly enough to avoid the collision. If her speed had been reduced, the collision would not have occurred." (Emphasis added.)
As the insurer observed, in none of these passages did the member identify the maximum speed for safe driving in the area. This approach to the assessment of breach of duty was, the insurer submitted, inconsistent with the principles stated by the High Court in Derrick v Cheung. [6]
In Derrick a motorist hit an infant who ran onto the road into the path of her vehicle. The trial judge had found that the driver was negligent, "because a collision might have been avoided had the motorist been travelling at a lesser speed than she was". [7] The Court noted that, in finding for the plaintiff, the trial judge "accepted a submission that in all of the circumstances, the appellant's speed of 45 to 50 kilometres per hour (despite being well within the prescribed speed limit) was excessive, because, his Honour said, at that speed it was beyond the power of a motorist to stop in time if a child suddenly appeared from in front of one of the parked cars". [8] In concluding that there was "no basis upon which any finding of negligence on the part of the appellant could be made" the Court stated: "13 Even if the inference which the trial judge drew, that if the appellant's speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based. Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence.
To similar effect, in Mobbs v Kain [9] Giles JA stated: "2 The trial judge did not find a particular speed at which, in the exercise of reasonable care, the second appellant should have been travelling when passing the bus. He found at [69] that the second appellant drove at a speed which was excessive in the circumstances. By this I understand him to have meant the speed to which he had referred earlier in that paragraph as 'a speed which would have permitted the second defendant to stop if the plaintiff had emerged from behind the bus in the way he did'."
Further, in a judgment with which Macfarlan JA agreed, McColl JA stated: [10] "103 It is not reasonable, in my view, to require the second appellant to slow down to whatever speed would have avoided the accident. Leaving aside the high level of abstraction at which such a conclusion is expressed and its failure to address the particular risk, it is, in my view, the product of impermissible hindsight reasoning. The s 5B/Shirt inquiry requires the Court to look forward to identify what a reasonable person would have done in the circumstances, not backward to identify what would have avoided the injury …."
The member's bald statements that the driver should have been going at a speed which would have allowed her to avoid hitting the claimant obscured the need to ask (i) at what distance the driver should have seen the claimant; (ii) at what speed would she necessarily have been travelling to avoid hitting the claimant, and (iii) did reasonable care for other road users require that she not exceed that speed. As is well known to those involved in motor vehicle cases, there is always a reaction time to be taken into account and a calculation based on the rate of deceleration upon applying the brakes. A vehicle travelling at 36 kph would cover 10 metres in each second. The findings of fact made by the member did not permit any calculation as to the speed which would have been the maximum speed in order to avoid the collision. If that speed were less than 40 kph, there may have been a question as to whether, even in an area where there are bus stops, reasonable care required drivers to proceed at a lower speed. It was legal error to approach the issue of the insured driver's fault by referring to an indeterminate "appropriate" speed, and not answering the questions identified above.
Without a proper finding as to breach of duty, the proportionate culpability of each cannot be assessed. The insurer was correct in asserting that the member failed in a material respect to apply the correct legal principle.

Culpability of claimant

For the reasons noted above, there is a degree of ambiguity as to when the claimant first observed the vehicle in front of which she walked. Although it is not possible to tell from the CCTV footage how long the claimant took to move from the kerb to lane 2 (on the near side of which she was hit) it is unlikely to have taken more than four seconds. In that time, a vehicle travelling at less than 40 kph may have covered 40 metres. Even if the driver had seen the claimant at the time the claimant apparently saw the car (as she was about to step off the kerb), it does not follow that the driver was required to assume that the claimant would walk across the road in front of her.
Assuming there was some evidence as to the position of the vehicle when first seen by the claimant, there was no finding as to where it was. The problem for assessing the claimant's culpability was that if she did not see the vehicle, it was because she did not look and she should have done, but if she did see the vehicle, to ignore its approach as she stepped into its lane involved a significant level of culpability. The member failed to make necessary findings of fact and in that sense was not in a position to assess the culpability of the claimant. That was to fail properly to carry out a necessary step in resolving the dispute and demonstrated legal error.

Comparative exercise

The insurer contended that the member had commenced the exercise of comparing the respective levels of culpability of the two parties on a false footing. She stated: "28 In the category of a motor accident case where a vehicle strikes a pedestrian, almost inevitably, the insured driver's responsibility will be treated as more significant than a pedestrian's failure to keep a lookout; because of the former's potential to do great harm: see Anikin v Sierra."
The insurer submitted that this involved a misapprehension of the reasoning of the High Court in Anikin v Sierra. [11] There are two significant passages in the reasoning in Anikin: the first read: "40 The starting point for the Court of Appeal's analysis was the conclusion of the primary judge concerning the credibility of the evidence of the bus driver. Had the primary judge accepted the bus driver's evidence, concerning the position that the appellant took up towards the middle of the lane in which the bus was travelling, and the suggestion that he assumed that position only 10 or 15 metres in front of the bus in order to flag it down, the conclusion of the Court of Appeal that there was no evidence of negligence would have been irresistible."
The Court referred to Derrick and distinguished it in the following passage: "46 This was not, therefore, a case like Luxton v Vines where the possibilities were equally open and neither could be said to be more likely. Nor was it a case like Derrick v Cheung where the defendant came upon the infant victim, emerging from two parked vehicles onto the road in the path of the defendant's vehicle driving within the prescribed speed limit. Here, there was a range of visibility available to the bus driver, a professional motorist, if he were keeping a proper lookout. Most importantly, there was an unimpeded capacity to move the vehicle to the right. Had that been done even at a late stage the serious injury to the appellant would have been avoided. True, the appellant was obliged to keep a proper lookout for his own safety. However, the bus driver, who was in charge of a powerful vehicle had obligations to exercise care for pedestrians in the position of the appellant. … 50 It is accepted that the decision of the trial judge is 'not lightly reviewed'. Santow JA referred to the authorities for that proposition but did intervene with the result indicated above. 51 However, his Honour did not refer to the decision of this Court in Pennington v Norris where it was stressed that what was to be considered was the respective degrees of departure from the standard of care of the reasonable person. On the facts of Pennington it was said that to drive a car at high speed involved negligence of a far greater culpability than the failure of the plaintiff to keep a proper lookout when crossing the road. This Court in Pennington fixed the proportions at 20:80, rather than the 50:50 which had been fixed by the trial judge. 52 Consistently with that reasoning, Sidis DCJ emphasised that the first respondent had, as the bus driver, far greater capacity to cause damage, and was the major cause of the accident…". [Footnote references omitted.]
The principle to be derived from Anikin is not that the driver's level of culpability will, almost inevitably, be greater than that of the pedestrian, but rather that each case must be assessed according to its own circumstances and in some the driver may bear no responsibility at all.
At [34] in the passage set out above, the member reasoned that "on the score of causative contribution for the accident, the insured driver had the far superior means of avoiding the damage to the claimant by reducing her speed in what was an obviously built-up high pedestrian traffic area". That was not the principle stated in the last passage from Anikin, which was that, "the bus driver, far greater capacity to cause damage" because the bus, and any motor vehicle are both heavy machines. Assuming that both driver and pedestrian can see each other, and the driver is not driving at high speed, it may well be that the pedestrian has superior ability to avoid an accident.
The insurer submitted that the member had failed to give appropriate weight to the operation of s 5R of the Civil Liability Act, as discussed in T and X and in Boral Bricks Pty Ltd v Cosmidis (No 2). [12] In other words, the member erred by applying some a priori principle which weighted the scales in favour of the claimant irrespective of the particular circumstances of the case. That challenge should also be accepted as involving legal error.

Conclusions as to error of law

The insurer's complaints that the member had erred in law, the errors appearing on the face of her reasons, should be accepted and are each sufficient to require that the decision be set aside. No discretionary issues which might preclude such relief are apparent.

No evidence ground

Ground 5 alleged that the member "misconstrued or misapplied the evidence". As the submissions revealed, however, the insurer's case was that, although the member sought to draw certain inferences from the CCTV footage, those inferences were not reasonably available and there was no other evidence to support them.
The first inference was that the claimant was visible to the driver "upon stepping off the kerb of Smith Street". It is true that there was no direct evidence to support that proposition, but if the member in fact found that the car was visible to the claimant because there was no second bus immediately behind the claimant's bus, the reverse (that the claimant was visible to the driver) was also an available finding. In any event, although this was arguably an important issue in the case, it is not clear that the impugned finding was in fact made.
The second finding was that the claimant "paused before stepping into the driver's lane". What in fact the member stated was as follows: [13] "It is clear that, as the bus driver says, the claimant tries to stop herself before being hit by the insured vehicle as figure 1 below demonstrates."
Figure 1 was a still from the CCTV footage. On one view it does show the claimant trying to stop suddenly, with the front of the vehicle less than 2 metres away. The bus driver's statement was consistent with that inference. There was therefore a basis for the finding, but even if that were not the case, it was not a finding which had consequences for the decision.
The third challenged finding was more troubling. It was a finding that the vehicle accelerated as it approached the point of the accident. Such a finding was clearly made in the following passage: [14] "At the oral hearing before me, the claimant gave evidence that she had looked down Smith Street, for oncoming traffic and noted that the insured vehicle was sufficiently distant for her to be able to cross the single lane of traffic. As I interpret the CCTV footage, the insured vehicle appears to be accelerating immediately prior to the point at which she collided with the claimant. I infer that this is probably because she was attempting to travel through the traffic lights not far from where the incident occurred."
The insurer's submission that it was impossible to derive an inference of acceleration from the CCTV footage must be accepted. The right-hand limit of the picture is only just wide enough to allow the full length of the vehicle to appear after it stopped. It must have been decelerating for much, if not all, of the time it was visible. The inference that was then drawn, that the driver was speeding to travel through traffic lights, cannot have been available. On any view, even if the car had been accelerating, it would have been unsupported speculation.
The finding had significance. If the claimant in fact looked down Smith Street and saw the vehicle approaching, which must have been before she left the kerb (after which time it is clear she did not look to the right) then the only excuse for not looking again to the right before stepping into lane 2 was that the vehicle had unexpectedly accelerated. This finding was therefore not insignificant, but could not have been made on the evidence.
The finding was arguably contradicted in the following paragraph when the member drew the inference from the CCTV footage that the insured driver "was able to brake, just not quickly enough to avoid the collision".
For a no evidence finding to support quashing a decision, the fact found must have been material to the outcome. There is some difficulty in being sure that the finding of acceleration was material, although it certainly provided a basis for reducing the contributory negligence of the complainant. [15] In any event, it is not necessary to rely upon this ground in this matter.

Unreasonable determination

Finally, although not explicitly addressed in these terms in the grounds set out in the summons, counsel for the insurer acknowledged at the hearing that one aspect of the challenge was that the final decision was manifestly unreasonable. The decision, in the present case, involved two findings, namely that "the motor accident was caused by the fault of another person" and that the accident "was not caused mostly by the fault of the injured person". If one were to limit the challenge to the latter finding, it might not be possible to say that the finding was manifestly unreasonable. Even if the definition in s 3.11(2) were treated as part of the finding, namely that the contributory negligence of the claimant was not greater than 61%, the finding might not have been manifestly unreasonable.
If, on the other hand, the proper question is whether the actual finding of contributory negligence of 25% was manifestly unreasonable, a different result might follow. In my view, applying correct principles, a finding of 25% contributory negligence was well below the bottom of any range reasonably available to the member. On the other hand, it might be contended that the member's finding was explicable on the basis of the principles of law which she applied. Where those principles have been found to involve legal error on the face of the record, it is neither necessary nor helpful to explore the basis of the further ground, which was not fully developed in the course of submissions.

Conclusion

On the basis of the errors of law identified above, the decision of the Commissioner must be set aside.
The Court makes the following orders: 1. Set aside the decision of the member of the Personal Injury Commission dated 21 December 2022 in matter No M10472665/21 and set aside the Certificate issued under s 7.36(4) of the Motor Accident Injuries Act 2017 with respect to the decision. 2. Remit the miscellaneous claims assessment to the Commission for reconsideration by the Commission constituted by a different member.

Endnotes

Reasons at [9].
Reasons at [20].
Reasons at [23]-[26].
(2005) 80 ALJR 413; [2005] HCA 79 at [11].
Reasons at [29].
[2001] HCA 48; (2001) 181 ALR 301.
Derrick at [1].
Derrick at [8].
[2009] NSWCA 301; 54 MVR 179.
See also T and X Company Pty Ltd v Chivas [2014] NSWCA 235; 67 MVR 297 at [34]-[35].
(2004) 79 ALJR 452; [2004] HCA 64.
(2014) 86 NSWLR 393; [2014] NSWCA 139 at [99]-[100].
Reasons at [10].
Reasons at [33].
See M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, Law Book Co, 2022), pp 237-238. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2023

At a glance

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Judgment (14 paragraphs)

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Cases Cited (10)

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